Two recent posts, by Corey Robin and Mike Konczal, have got me thinking recently on the relationship between libertarian theory and gender. It’s a subject I, unfortunately, hadn’t given much thought to previously, having been content to note that libertarianism is typically the theory of young white men in a somewhat arrested state of emotional development. The actual place of gender in libertarian thought, however, was something I hadn’t considered at all. Robin’s post, however, forced me to devote some thought to the subject by linking to this essay by Susan Okin, entitled ‘Libertarianism: Matriarchy, Slavery, and Dystopia,’ which I highly recommend reading.

Okin’s argument is that political theory in general has tended to ignore women and the family, and that once they are brought into the picture, things change drastically. In particular, libertarian theory, or at least the variant developed by Robert Nozick in Anarchy, State, and Utopia, collapses completely. Here’s why.

Nozick’s argument is that as long as a given property arrangement was reached through entirely voluntary transactions between individuals, there is no injustice in it*. This is because people are entitled to self-ownership and the ownership of anything they create, as long as they do so with means that have been legitimately acquired. For Nozick, redistributive taxation is a violation of justice, since it involves taking, by the threat of force, the property one person has legitimately acquired and giving it to another. Nozick claims there can be no ‘positive liberty,’ no right to any resources such as food, health care, etc, since all of these things have been created by people who already have a right to them. Property rights are absolute, and any negation of them is an injustice.

Okin asks what happens when women and children are introduced into Nozick’s world. Immediately, it appears that children must come into the world as the property of their mothers. Children are the product of a woman’s reproductive labor, using sperm she has (almost always) acquired legitimately. If Nozick wants to argue that redistribution is unjust because the products of human labor come into this world already attached to those who made them, there seems to be no clearer example of this than children. And Nozick can’t evade this critique by claiming it is illegitimate to own people, since he is explicit that selling oneself into slavery must be allowed in a libertarian society. Humans can be property, and according to his argument, children must be the property of their mothers.

A society based on Nozick’s principles would thus be, as Okin characterizes it, a combination of matriarchy and slavery, in which the everyone was owned by their mothers. This destroys the central point of Nozick’s argument, which is that a libertarian society is necessary to respect human self-ownership. By simply looking at the situation of women and children, Nozick’s argument disintegrates.

This seems to me a devastating criticism, one that Nozick really can’t rebut while upholding the basic arguments of his book. It got me curious as to how other variants of libertarianism would deal with Okin’s challenge. So I decided to take a look at Murray Rothbard’s The Ethics of Liberty, and see if it fared any better.

Rothbard’s argument is similar to Nozick’s in many ways. Self-ownership is once again the ethical foundation, and any distribution of holdings that results from voluntary actions is a just one. However, Rothbard differs from Nozick in his emphasis that only alienable goods may be forms of property. Thus things like intellectual property are not legitimate forms of property, since my making a copy of your book does not affect your property. Only goods over which ownership can be transferred, what Rothbard calls ‘title-transferable’ goods, are legitimate forms of property. Similarly, Rothbard denies that self-enslavement is possible, since a person’s control over their body and mind is inalienable. Should someone sell themselves into slavery, and then later decide they do not, in fact, wish to be enslaved, this proves that they haven’t actually transferred ownership of their mind and body, and that self-owning human beings cannot transfer title to their selves. Any contract based on such a transfer is unenforceable.

This seems to get Rothbard out from under Okin’s razor. Where Nozick is quite clear that self-owning people may sell themselves into slavery, Rothbard holds that no one may hold title to another person who is capable of self-ownership. I’ll return to this subject below, and ask if Rothbard’s arguments against self-enslavement in fact hold up, but for now I’m interested in simply exploring his ethics a little more from the angle suggested by Okin.

The Ethics of Liberty contains a short section on ‘Children and Rights’ that does deal with these questions. Rothbard begins by providing what he argues is a proper libertarian defense of abortion. He argues, following Locke, that children are best viewed as potential self-owners, not yet possessing the capability for the full exercise of their rationality. He notes that the traditional Catholic position, that fetuses are potential people, and thus deserve rights, is quite close to the commonsense view that a newborn baby is a potential adult**, and is thus subject to the libertarian non-aggression principle. Thus a libertarian ethics cannot justify abortion on the view that fetuses don’t have the same rights adults do.

Instead, Rothbard bases his defense of abortion on the grounds that no one is entitled to the use of another person’s body without their consent. Just as a starving man has no right whatsoever to take a can of peas from the kitchen of a billionaires’ third home which he only visits for one weekend a year, a fetus, even if, as a potential person, it has most of the rights of a full person, has no right to use a woman’s body. The fact that denying a potential self-owner this right means its death is of no consequence for Rothbard, since he maintains there is nothing unjust about people starving to death while others burn food that is their property in front of the faces of the starved. Thus Rothbard argues that libertarian principles provide for a robust defense of abortion rights.

Once children are born, the situation is much the same. Rothbard willingly accedes to what Okin argues is a consequence of entitlement theory: that children are the property of their mothers. However, Rothbard argues that children are a special sort of property. As potential self-owners, the non-aggression principle applies to them. At the same time, Rothbard wants to uphold the general libertarian principle that no one may be legally compelled to undertake any action they do not desire to (providing that action is not a form of punishment for a previous violation of the NAP). As such, he argues that ‘a parent does not have the right to aggress against his children, but also that the parent should not have a legal obligation to feed, clothe, or educate his children, since such obligations would entail positive acts coerced upon the parent and depriving the parent of his rights.’

Additionally, Rothbard argues that since children are the property of their parents, they should be considered title-transferable goods that can be sold. A ‘flourishing free market in children’ is not only just, but would also be a positive good, as it would better match up families who wished to be rid of a child with families who wanted them than the current state-controlled system.

This state of affairs comes to an end when a child achieves self-ownership. For Rothbard, this point is easily determined:

The clue to the solution of this thorny question lies in the parental property rights in their home. For the child has his full rights of self-ownership when he demonstrates that he has them in nature—in short, when he leaves or “runs away” from home. Regardless of his age, we must grant to every child the absolute right to runaway and to find new foster parents who will voluntarily adopt him, or to try to exist on his own. Parents may try to persuade the runaway child to return, but it is totally impermissible enslavement and an aggression upon his right of self-ownership for them to use force to compel him to return. The absolute right to run away is the child’s ultimate expression of his right of self-ownership, regardless of age.

Once children exercise their self-ownership, they cease to be title-transferable and their persons become unalienable in the manner Rothbard describes.

This is, in brief, Rothbard’s position on the application of justice to the family. Children are the property of their parents, and thus salable, but because they are potential self-owners, they fall under the non-aggression principle. Parents have no obligations to their children, and this lack of obligation is what justifies a woman’s right to an abortion.

As you will undoubtedly have noticed, Rothbard’s framework here is fraught with problems. On the most basic level, his simultaneous justification of neglect and condemnation of murder seem to allow for a distinction in numerous situations without any real difference. For Rothbard, it is unjust for a parent to put an infant in the freezer, but it is just to leave your child outside on a park bench to freeze to death in January. It is unjust to run your toddler over with your car, but it’s fine to leave him in the middle of the highway. These situations are so close to one another that labeling one just and the other unjust is absurd. However, to hold them to a common standard would be to admit human obligations to one another into the realm of justice, an intrusion which would undermine the basic principles of Rothbard’s system of ethics.

His attempt to render children both salable and subject to the NAP creates even bigger problems. Consider, for example, a person in Rothbard’s ideal anarcho-capitalist society whose embrace of social Darwinism is such that he buys toddlers by the truck full, and places them all in a room together with only enough food for a small number of them, because he enjoys watching the struggle for survival. Some of the toddlers die in this process. For Rothbard, there is nothing unjust about such a person’s actions (though Rothbard would surely admit that it would be immoral).

The biggest problems with this combination emerge, however, not in the actions of madmen, but in the everyday conduct of normal families. Families who acted according to Rothbard’s conception of the rights of children and parents would depart drastically from what most people think of as proper parenting. By applying the NAP to the parent-child relationship, Rothbard limits parental sanctions to those that could be justified by the parents’ lack of obligation to support their children. For Rothbard, a child who would rather watch television than go visit his grandparents cannot simply be marched to the car by frustrated parents. Indeed, this would be kidnapping. However, parents who threaten to sell their children in such a situation commit no injustice. Grounding is similarly impermissible, as it would constitute unjust imprisonment. Parents can only threaten consequences like refusing meals, taking away toys, etc. An excitable child at an amusement park can’t be restrained by his parents – they can only threaten to leave him there if he runs off. This situation becomes especially acute with very small children, who are old enough to misbehave, but not to be negotiated with. Given the severity of many of the sanctions available to parents under Rothbard’s concept of justice, parents are left with a choice of either threatening sanctions they certainly would rather not employ, or being terrorized by their children.

The combination of the NAP with rights derived from potential self-ownership also creates other problems for Rothbard. But before exploring these, it is worth noting that his argument that potential self-ownership confers rights is unconvincing. Rothbard never provides any real argument for why potential self-ownership should confer actual rights. Instead, he suggests by way of an unstated analogy, noting that the traditional Catholic critique of abortion ‘comes disquietingly close to the general view that a newborn baby cannot be aggressed against because it is a potential adult.’ There is a lot wrong here. First, Rothbard doesn’t provide any evidence that the general sentiment against harming babies is based on their potential to become adults. Indeed, I doubt matters of potentiality would come into it if you asked most people why it’s wrong to hurt babies. More importantly, however, is the simple fact that there are clear differences between potentiality and capability. The fact that someone has the potential to become something doesn’t mean they have some of the qualities that would accompany them fulfilling that potential. As Joel Feinberg has argued, a five year old may have the potential to become president of the United States, but that doesn’t mean she gets a limited version of the powers available to the commander-in-chief. Similarly, just because an entity has the potential for self-ownership doesn’t mean it should receive some of the rights conferred by such a capability.

Additionally, the argument from potential has some rather disturbing side effects. Terminally ill and developmentally disabled children, according to Rothbard’s argument, don’t have the potential for self-ownership, and as such, don’t fall under the NAP. Similarly, if I know a child is about to board a cruise ship with a bomb on it that will kill everyone on board in twelve hours, I can do whatever I wish to that child, since he has no potential for becoming a self-owner.

Let’s put this aside, however, and proceed as if Rothbard’s argument for the application of the NAP to potential self-owners were valid. Considering the case for abortion, Rothbard’s argument is actually a far less robust defense of women’s rights than it appears. There are a number of abortion procedures, after all, which do not simply remove the fetus from the uterus, but actively destroy it. The most well-known example of this is the intact dilation and extraction procedure, more commonly known by the misleading label bestowed by pro-lifers, partial birth abortion. Several other procedures require feticide before the fetus is extracted. While these procedures constitute a distinct minority of all abortions performed, it is nonetheless disturbing that Rothbard’s ethics forbid medical techniques that thousands of women turn to every year. Rothbard’s application of the NAP to fetuses creates even bigger problems when we think about future abortion techniques. Many early abortificants are hormonal doses which cause the implanted embryo to be expelled. But it is plausible that future abortion techniques will simply target the embryo itself, and have no direct effect on the woman’s body. Such techniques would, hypothetically, be safer than giving women massive doses of hormones. But according to Rothbard, these future techniques would be violations of the rights of the potential self-owner in the uterus. Here, one is again reminded of Okin’s argument that political theorists typically do not bother expending thought on the circumstances of women’s lives.

When it comes to abortion, therefore, Rothbard’s ethics are caught on the horns of a dilemma. To disallow the scenario of parents being allowed to eat their children, Rothbard argues that it is necessary to apply the NAP to potential self-owners, including fetuses (obviously, there are a host of other ways to justify such a position, but most of them would conflict with Rothbard’s libertarian principles). However, this application makes his defense of abortion a rather weak one, and leads to the strange position of libertarians supporting the barbaricPartial Birth Abortions Act. If Rothbard wants to disallow infantiphagia, he must produce a compromised defense of abortion. If he wants a robust defense of abortion, he has no grounds on which to argue that infantophagia is unjust.

There are thus a host of problems with Rothbard’s ethical theory as it applies to the family. It licenses any number of terrible acts, impedes the ability of parents to parent, fails to defend abortion rights robustly, and doesn’t extend any protection to the most vulnerable children. At this point, I’d like to return to Okin’s argument, and examine just how successful Rothbard is at evading it. As we’ve seen, his escape here depends on his contention that self-owning humans cannot transfer their future will to another person. It is an inalienable possession. This position is not at all obvious, however. As Walter Block has argued, from a libertarian perspective, if people cannot sell themselves, it is difficult to see why they should be seen as possessing self-ownership. After all, the ability to sell something seems to be an important criterion of ownership. Block, however, fails to see the real problem with Rothbard’s argument. Rothbard argues that one cannot alienate one’s future will through a contract, because one retains possession of that willpower despite the contract. Thus such contracts are unenforceable. This position would seem to render any contract based on future services unenforceable. After all, if I pay a someone fifty dollars to water my plants, I am certainly making a claim to his future willpower – namely, his act of watering my plants. Alternatives to this interpretation are hard to come by. One could say I am in fact not buying any specific act by any person, I am only buying the state of my plants being watered. After all, if he in turn pays a friend twenty dollars, and my plants end up watered all the same, I hardly have any grounds for complaint. But even here I still have had a claim on my waterer’s willpower. He must cause the state of my plants being watered to come into effect. The fact that he may choose the means by which he achieves this doesn’t alter that fact.

According to Rothbard, however, future will is inalienable, and cannot be the subject of contract. Any agreements which are premised on a claim to someone’s future willpower are mere promises, and not enforceable by law. In one fell swoop, he has disallowed all contracts where money is exchanged up front for future services. This may not appear to be significant – one could imagine a world in which services always come first, and payment second. There are a host of services, however, for which this arrangement would seem to be impossible. The most important of these is Rothbard’s means of enforcing contracts in his anarcho-capitalist society: defense agencies. Rothbard argues that the system of justice he describes would be administered by private agencies to which consumers subscribe in return for the assurance that their agency will be responsible for securing restitution in the case of any breach of their rights. Leaving aside the sociological problems with this system, under Rothbard’s system of justice the subscriptions paid by consumers would be unenforceable contracts, since they involve the claim to people’s future willpower. Rothbard is explicit on this point, noting that ‘Most likely, such services would be sold on an advance subscription basis, with premiums paid regularly and services to be supplied on call.’ Under such an arrangement, consumers clearly purchase a claim on people’s future willpower – they purchase the assurance that their agencies will in fact bring their aggressors to justice. Given that such contracts are unenforceable, however, there is no reason why anyone would ever subscribe to a defense agency, since the people on whose willpower they made a claim could always simply change their mind with no consequences.

Rothbard cannot then disallow the enslavement of adult humans on the basis of the inalienability of their will without posing grave problems for his entire system of justice. If he cannot deny the justice of adult humans being enslaved, he has no means of escaping from Okin’s critique, and his libertarian paradise would turn into the same combination of matriarchy, slavery, and dystopia described by Okin. As with Nozick, Rothbard’s ethics are incapable of being sustained once gender and families are seriously considered.

* In the appendix to the book, Rothbard complains about Nozick’s ‘immaculate conception of the state,’ noting that even if Nozick thinks that a state could be established justly, the existing ones certainly have not been, and therefore Nozick should be an anarcho-capitalist. However, Rothbard fails to note that his critique applies to his own justification for the existing distribution of private property, which has rather obviously not been established through voluntary transactions .

**Here, as elsewhere, Rothbard reveals just how little he actually adheres to his methodological insistence on proceeding by reason alone. In this instance, he allows for justice to be established by democracy, by appealing to commonsense (a particularly egregious mistake for a libertarian philosopher!). Elsewhere, he relies on moral intuition, as in his revulsion at infantiphagia. Personally, I think that balancing between moral intuition and rationalist approaches is the proper method for moral philosophy, and have no real problems with Rothbard doing so. But it certainly makes a mockery of his rationalist pretensions.